Understanding the legal framework
Helping you understand the law, your rights and when specialist legal advice may be needed.
Healthcare and the law
Advance care planning often involves both healthcare and the law. We explain the relevant laws in plain language, help you understand the processes involved, and help you recognise when you need individual legal advice. We are not solicitors and do not give legal advice.
The Mental Capacity Act 2005
In England and Wales, the Mental Capacity Act sets out how capacity is assessed and how decisions are made in a person’s best interests. It also covers advance decisions to refuse treatment, lasting powers of attorney, court-appointed deputies, independent mental capacity advocates (IMCAs) and the Deprivation of Liberty Safeguards.
Human rights and healthcare
The Human Rights Act 1998 requires public bodies, including the NHS and local councils, to respect people’s rights. In healthcare, the most relevant are usually the right to life, the right not to be subjected to inhuman or degrading treatment, the right to liberty, and the right to respect for private and family life. For example, the courts have found that patients should normally be involved in decisions about whether to attempt resuscitation. How these rights apply in an individual case may need specialist legal advice.
The Court of Protection and the Office of the Public Guardian
The Court of Protection makes decisions about mental capacity and best interests when matters cannot be resolved in other ways. It can decide whether an advance decision is valid and applies, settle serious disagreements about treatment, and decide questions about an attorney’s authority.
The Office of the Public Guardian registers lasting powers of attorney and investigates concerns that an attorney or deputy is not acting properly.
When legal advice may be needed
Examples include:
- disputes about whether an advance decision is valid or applies
- challenges to an attorney’s authority
- serious disagreements about life-sustaining treatment
- concerns that a lasting power of attorney is being misused
- considering an application to the Court of Protection
How we can help
Our specialist nurses can:
- explain general legal requirements and terminology
- help you identify the questions to ask clinical or legal professionals
- point you to appropriately qualified advisers
We do not give legal opinions, represent anyone in court, or decide whether a disputed decision is lawful.
Frequently asked questions
Do I need a solicitor to make an advance decision or a health and welfare LPA?
No. Many people make these documents themselves. The legal requirements still apply, so it is important to get them right, and specialist advice can help in complex situations.
Can you guarantee my wishes will be followed?
No one can guarantee this. A valid advance decision that applies to the situation is legally binding, but future circumstances can be hard to predict. Clear wording, regular reviews and making sure the right people have copies all reduce avoidable uncertainty, and we can help with each of these.
Can you help if I think a decision was unlawful?
We can explain the general framework and the routes for raising concerns, such as asking for a review, making a complaint, contacting the Parliamentary and Health Service Ombudsman (England) or the Public Services Ombudsman for Wales, or reporting concerns about an attorney to the Office of the Public Guardian. Deciding whether a specific decision was unlawful needs a qualified legal professional.
Take the next step
Understand the framework and know when to seek further advice. Contact us for specialist nurse-led information and signposting.
Send us an enquiry